Office the Director
Policy Number: 10075
FEA Number:
306-112-0026
U.S. Department Homeland Security
500 12th Street,
Washington, D.C. 20536
U.S. Imm igratio
and Customs
Enforcement
June 17, 2011
MEMORANDUM FOR:
All Field Office Directors
All Special Agents Charge
All ChiefCounsel
FROM:
Director
SUBJECT:
Exercising Prosecutorial Discretion Consistent with the Civil
hnmigration Enforcement Priorities the Agency for the
Apprehension, Detention, and Removal ofAliens
Purpose
This memorandum provides U.S. hnmigration and Customs Enforcement (ICE) personnel
guidance the exercise ofprosecutorial discretion ensure that the agencys immigration
enforcement resources are focused the agencys enforcement priorities. The memorandum
also serves make clear which agency employees may exercise prosecutorial discretion and
what factors should considered.
This memorandum builds several existing memoranda related prosecutorial discretion with
special emphasis the following:
Sam Bernsen, Immigration and Naturalization Service (INS) General Counsel, Legal
Opinion Regarding Service Exercise ofProsecutorial Discretion (July 15, 1976); Cooper, INS General Counsel, INS Exercise ofProsecutorial Discretion (July 11,
2000);
Doris Meissner, INS Commissioner, Exercising Prosecutorial Discretion (November 17,
2000); Cooper, INS General Counsel, Motions Reopen for Considerations ofAdjustment
William Howard, Principal Legal Advisor, Prosecutorial Discretion (October 24, Status (May 17, 2001
2005);
Julie Myers, Assistant Secretary, Prosecutorial and Custody Discretion (November
2007);
John Morton, Director, Civil Immigration Enforcement Priorities for the Apprehension,
Detention, and Removal ofAliens (March 2011 and
John Morton, Director, Prosecutorial Discretion: Certain Victims, Witnesses, and
Plaintiffs (June 17, 2011).
www.ice.gov
Exercising Prosecutorial Discretion Consistent with the Priorities the Agency for the
Apprehension, Detention, and Removal Aliens
The following memoranda related prosecutorial discretion are rescinded:
Johnny Williams, Executive Associate Commissioner (EAC) for Field Operations,
Supplemental Guidance Regarding Discretionary Referrals for Special Registration
(October 31, 2002); and
Johnny Williams, EAC for Field Operations, Supplemental NSEERS Guidance for
Call-In Registrants (January 2003).
Background
One ICEs central responsibilities enforce the nations civil immigration laws
coordination with U.S. Customs and Border Protection (CBP) and U.S. Citizenship and
Immigration Services (USCIS). ICE, however, has limited resources remove those
illegally the United States. ICE must prioritize the use its enforcement personnel,
detention space, and removal assets ensure that the aliens removes represent, much
reasonably possible, the agencys enforcement priorities, namely the promotion national
security, border security, public safety, and the integrity the immigration system. These
priorities are outlined the ICE Civil Immigration Enforcement Priorities memorandum
March 2011, which this memorandum intended support.
Because the agency confronted with more administrative violations than its resources can
address, the agency must regularly exercise prosecutorial discretion prioritize its
efforts. basic terms, prosecutorial discretion the authority agency charged with
enforcing law decide what degree enforce the law against particular individual. ICE,
like anYother law enforcement agency, has prosecutorial discretion and may exercise-it the
ordinary course enforcement When ICE favorably exercises prosecutorial discretion,
essentially decides not assert the full scope the enforcement authority available the agency given case. the civil immigration enforcement context, the term prosecutorial discretion applies
broad range discretionary enforcement decisions, including but not limited the
following:
deciding _issue cancel notice detainer;
deciding issue, reissue, serve, file, cancel Notice Appear (NTA);
focusing enforcement resources particular administrative violations conduct;
deciding whom stop, question, arrest for administrative violation;
deciding whom detain release bond, supervision, personal recognizance,
other condition;
seeking expedited removal other forms removal means other than formal
removal proceeding immigration court;
The _Meissner memorandums standard for prosecutorial discretion given case turned principally whether
substantial federal interest was present. Under this memorandum, the standard principally one pursuing those
cases that meet the agencys priorities for federal immigration enforcement generally.
Exercising Prosecutorial Discretion Consistent with the Priorities the Agency for the
Apprehension, Detention, and Removal Aliens
settling dismissing proceeding;
granting deferred action, granting parole, staying final order removal;
agreeing voluntary departure, the withdrawal application for admission,
other action lieu obtaining formal order removal;
pursuing appeal;
executing removal order; and
responding joining motion reopen removal proceedings and consider
joining motion grant relief benefit.
Authorized ICE Personnel
Prosecutorial discretion civil immigration enforcement matters held the Director and
may exercised, with appropriate supervisory oversight, the following ICE employees
according their specific responsibilities and authorities:
officers, agents, and their respective supervisors within Enforcement and Removal
Operations (ERO) who have authority institute immigration removal proceedings
otherwise engage civil immigration enforcement;
officers, special agents, and their respective supervisors within Homeland Sect ity
Investigations (HSI) who have authority institute immigration removal proceedings otherwise engage civil immigration enforcement;
attorneys and their respective supervisors within the Office the Principal Legal
Advisor (OPLA) who have authority represent ICE immigration removal
proceedings before the Executive Office for Immigration Review (EOIR); and
the Director, the Deputy Director, and their senior staff.
ICE attorneys may exercise prosecutorial discretion any immigration removal proceeding
before EOIR, referral the case from EOIR the Attorney General, during the pendency appeal the federal courts, including proceeding proposed initiated CBP
USCIS. ICE attorney decides exercise prosecutorial discretion dismiss, suspend,
close particular case matter, the attorney should notify the relevant ERO, HSI, CBP,
USCIS charging official about the decision. the event there dispute between the charging
official and the ICE attorney regarding the attorneys decision exercise prosecutorial
discretion, the ICE Chief Counsel should attempt resolve the dispute with the local supervisors the charging official. local resolution not possible, the matter should elevated the
Deputy Director ICE for resolution
Delegation Authority the Assistant Secretary, Immigration and Customs Enforcement, Delegation No. 7030.2
(November 13, 2004), delegating among other authorities, the authority exercise prosecutorial discretion
immigration enforcement matters (as defined U.S.C. 101(a)(17)).
Exercising Prosecutorial Discretion .Consistent with the Priorities the Agency for the
Apprehension, Detention, and Removal Aliens
Factors Consider When Exercising Prosecutorial Discretion
When weighing whether exercise prosecutorial discretion may warranted for given
alien, ICE officers, agents, and attorneys should consider all relevant factors, including, but not
limited
the agencys civil immigration enforcement priorities;
the persons length presence the United States, with particular consideration given presence while lawful status;
the circumstances the persons arrival the United States and the manner his her
entry, particularly the alien came the United States young child;
the persons pursuit education the United States, with particular consideratfon given those who have graduated from U.S. high school have successfully pursued are
pursuing college advanced degrees legitimate institution higher education
the United States;
whether the person, the persons immediate relative, has served the U.S. military,
reserves, national guard, with particular consideration given those who served
combat;
the persons criminal history, including arrests, prior convictions, outstanding arrest
warrants;
the persons immigration history, including any prior removal, outstanding order
removal, prior denial status, evidence fraud;
whether the person poses national security public safety concern;
the persons ties and contributions the community, including family relationships;
the persons ties the home country and conditioni:; the country;
the persons age, with particular consideration given minors and the elderly;
whether the person has U.S. citizen permanent resident spouse, child, parent;
whether the person the primary caretaker person with mental physical
disability, minor, seriously ill relative;
whether the person the persons spouse pregnant nursing;
whether the person the persons spouse suffers from severe mental physical illness;
whether the persons nationality renders removal unlikely;
whether the person likely granted temporary permanent status other relief
from removal, including relative U.S. citizen permanent resident;
whether the person likely granted temporary permanent status other relief
from removal, including asylum seeker, victim domestic violence, human
trafficking, other crime; .and
whether the person currently cooperating has cooperated with federal, state local
law enforcement authorities, such ICE, the U.S Attorneys Department Justice, the
Department Labor, National Labor Relations Board, among others.
This list not exhaustive and one factor is.determinative. ICE officers, agents, and attorneys
should always consider prosecutorial discretion case-by-case basis. The decisions should
based the totality the circumstances, with the goal conforming ICEs enforcement
priorities.
Exercising Prosecutorial Discretion Consistent with the Priorities the. Agency for the
Apprehension, Detention, and Removal Aliens
That said, there are certain classes individuals that wai;rant particular care. was stated
the Meissner memorandum Exercising Prosecutorial Discretion, there are factors that can help
ICE officers, agents, and attorneys identify these cases thatthey can reviewed early
possible the process.
The following positive factors should prompt particular care and consideration:
veterans and members the U.S. armed forces;
long-time lawful permanent residents;
minors and elderly individuals;
individuals present the United States since childhood;
pregnant nursing women;
victims domestic violence; trafficking, other serious crimes;
individuals who suffer froin serious mental physical disability; and
individuals with serious health conditions. exercising prosecutorial discretion furtherance ofICEs enforcement priorities, the
following negative factors should also prompt particular care and consideration byICE officers,
agents, and attorneys:
individuals who pose clear risk national security;
serious felons, repeat offenders, individuals with lengthy criminal record any kind;
known gang members other individuals who pose clear danger public safety; and
individuals with egregious record immigration violations, including those with
record illegal re-entry and those who have engaged immigration fraud.
Timing
While ICE may exercise prosecutorial discretion any stage
enforcement proceeding,
generally preferable exercise such discretion early the case proceeding possible
order preserve government resources that would otherwise expended pursuing the
enforcement proceeding. was more extensively elaborated the Howard Memorandum Prosecutorial Discretion, the universe opportunities exercise prosecutorial discretion
large. may exercised any stage the proceedings. also preferable forICE officers,
agents, and attorneys consider prosecutorial discretion cases without waiting for alien
aliens advocate counsel request favorable exercise discretion. Although affirmative
requests from alien his her representative may prompt evaluation whether
favorable exercise discretion appropriate given case, ICE officers, agents, and attorneys
should examine each such case independently determine whether favorable exercise
discretion may appropriate. cases where, based upon officers, agents, attorneys initial examination, exercise
prosecutorial discretion may warranted but additional information would assist reaching
final decision, additional information may requested from the alien his her
representative. Such requests should made conformity with ethics rules governing
Exercising Prosecutorial Discretion Consistent with the Priorities ofthe Agencyfor the
Apprehension, Detention, and Removal ofAliens
communication with represented individuals and should always emphasize that, while ICE may considering whether exercise discretion the case, there guarantee that the agency
will ultimately exercise discretion favorably. Responsive information from the alien his her
representative need not take any particular form and can range from simple letter e-mail
message memorandum with supporting attachments.
Disclaimer there right the favorable exercise discretion the agency, nothing this
memorandum should construed prohibit the apprehension, detention, removal any
alien unlawfully the United States limit the legal authority ICE any its personnel enforce federal immigration law. Similarly, this memorandum, which may modified,
superseded, rescinded any time without notice, not intended to, does not, and may not
relied upon create any right benefit, substantive procedural, enforceable law any
party any administrative, civil, criminal matter.
For questions concerning such rules, officers agents should consult their local Office Chief Counsel.